Federal Register/Vol. 86, No. 7/Tuesday, January 12, 2021/Rules

2246 Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations

document in electronic format for the Executive Secretary of the FDIC. appointed by the Board, the FDIC is publication, as an official document of These functions include but are not making technical changes to part 308 to the Department of Energy. This limited to: (1) Serving in place of an ALJ update outdated references to certain administrative process in no way alters when no ALJ has jurisdiction over an position titles. administrative proceeding; (2) issuing the legal effect of this document upon II. Exemption From Public Notice and rulings in certain administrative publication in the Federal Register. Comment proceedings; and (3) serving as the Signed in Washington, DC, on December Section 553 of the Administrative 21, 2020. custodian of records for administrative Procedure Act (APA) (5 U.S.C. 553) sets Treena V. Garrett, proceedings. See generally, 12 CFR 308.102(b) and 308.105. forth requirements for providing the Federal Register Liaison Officer, U.S. On June 21, 2018, the U.S. Supreme general public notice of, and the Department of Energy. Court held that the ALJs employed by opportunity to comment on, proposed [FR Doc. 2020–28599 Filed 1–11–21; 8:45 am] the U.S. Securities and Exchange agency rules. However, unless notice or BILLING CODE 6450–01–P Commission (SEC) were ‘‘inferior hearing is required by statute, those officers’’ of the United States under the requirements do not apply to Appointments Clause of the United interpretive rules, general statements of FEDERAL DEPOSIT INSURANCE States Constitution because these ALJs policy, or rules of agency organization, CORPORATION hold a continuing office established by procedure, or practice. See 5 U.S.C. law, and they exercise ‘‘significant 553(b)(A). 12 CFR Part 308 discretion’’ in connection with certain The FDIC is updating part 308, its RIN 3064–AF69 ‘‘important functions’’ when presiding rules of practice and procedure, to over administrative hearings. Lucia v. substitute the Administrative Officer for FDIC Rules of Practice and Procedure; SEC, 138 S. Ct. 2044, 2053–2054 (2018) the Executive Secretary in multiple Technical Revisions (Lucia). As inferior officers, the places. Since the changes relate to Supreme Court held that the SEC’s ALJs agency organization, procedure, or AGENCY: Federal Deposit Insurance are ‘‘subject to the Appointments Clause practice, the rules are being published Corporation. and as such, can only be appointed by in final form without public notice and ACTION: Final rule. the President, ‘‘Courts of Law’’ or comment. SUMMARY: The Federal Deposit ‘‘Heads of Departments.’’ See, Lucia, III. Regulatory Analysis Insurance Corporation (FDIC) is 138 S. Ct. 2044, 2046. A. Congressional Review Act amending its rules of practice and Although the Lucia decision did not procedure to codify the agency’s directly affect the FDIC or the ALJs for Under the Congressional Review Act longstanding practice of having certain the FDIC, the Board nevertheless elected (CRA), ‘‘[b]efore a rule can take effect, adjudicative functions performed by an to formally appoint the ALJs that the Federal agency promulgating such inferior officer of the United States preside over FDIC enforcement rule shall submit to each House of the appointed by the FDIC’s Board of proceedings. The ALJs who were Congress and to the Comptroller General serving at the time of the Lucia decision Directors (Board). Additionally, the a report containing—(i) a copy of the were appointed by the Board on July 19, FDIC is making other technical edits to rule; (ii) a concise general statement 2018. See FDIC Board Resolution its rules of practice and procedure to relating to the rule, including whether it 085152. Since that time, the Board has update references to certain positions is a major rule; and (iii) the proposed appointed all ALJs that preside over 1 within the FDIC Legal Division whose effective date of the rule.’’ The CRA FDIC enforcement proceedings. titles are outdated. further defines the term ‘‘rule’’ as Since the Lucia decision, the FDIC has having ‘‘the meaning given such term in DATES: The final rule is effective on received questions regarding whether January 12, 2021. section 551, except that such term does the FDIC’s Executive Secretary was also not include—(A) any rule of particular FOR FURTHER INFORMATION CONTACT: appointed in a manner consistent with applicability . . . ; (B) any rule relating Romulus A. Johnson, Counsel, Legal the Supreme Court’s ruling in Lucia. In to agency management or personnel; or Division, (202) 898–3820, romjohnson@ fact, the Board duly appointed the (C) any rule of agency organization, fdic.gov; Josephine M. Bahn, Senior FDIC’s current Executive Secretary as an procedure, or practice that does not Attorney, Legal Division, (202) 898– inferior officer on June 22, 1997, substantially affect the rights or 6576, [email protected]; or Nicholas S. pursuant to Article II of the United obligations of non-agency parties.’’ 2 Kazmerski, Counsel, Legal Division, States Constitution and 12 U.S.C. The FDIC is updating part 308, its (202) 898–3524, [email protected]. 1819(a) (Fifth) (allowing the FDIC to rules of practice and procedure, to SUPPLEMENTARY INFORMATION: ‘‘appoint by its Board of Directors such clarify that certain adjudicative officers and employees as are not I. Background functions, specified in part 308 as being otherwise provided for in this chapter’’). performed by the FDIC’s Executive Administrative enforcement Nonetheless, in the interest of Secretary or Assistant Executive proceedings brought by the FDIC are transparency and to assuage any Secretary, will be performed by an subject to the Administrative Procedure outstanding concerns about this issue, ‘‘Administrative Officer’’ or ‘‘Assistant Act (APA), 5 U.S.C. 551 et seq., and the we are amending part 308 to clarify and Administrative Officer’’ who has been FDIC Rules of Practice and Procedure, to expressly provide that such duly appointed by the Board. 12 CFR part 308. Under part 308, adjudicative functions will continue to Additionally, the FDIC is updating evidentiary hearings and related be performed by an inferior officer of outdated references to certain position proceedings are generally presided over the United States (Administrative titles in part 308. These amendments do by an Administrative Law Judge (ALJ). Officer) that has been duly appointed by not constitute substantive changes, but See generally, 5 U.S.C. 556; 12 CFR the Board. merely conform the titles in the 308.5, and 308.3. Additionally, part 308 In addition to clarifying that these provides that certain procedural and adjudicative functions are performed by 1 5 U.S.C. 801(a)(1)(A). adjudicative functions are reserved to an Administrative Officer that is duly 2 5 U.S.C. 804(3).

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regulation to the current titles of these quarter that begins on or after the date § 308.3 Definitions. positions. on which the regulations are published * * * * * The clarifications relate to agency in final form.4 The FDIC has determined Administrative Officer means an management and personnel, and to that the rule would not impose inferior officer of the Federal Deposit agency practice and procedure. Further, additional reporting, disclosure, or other Insurance Corporation, duly appointed to the extent that non-agency parties are requirements; therefore the by the Board of Directors of the Federal impacted by the amended rules (i.e., requirements of the RCDRIA do not Deposit Insurance Corporation to serve they may be required to submit requests apply. as the Board’s designee to hear certain and documents to the attention of the motions or requests in an adjudicatory E. Plain Language Administrative Officer rather than the proceeding and to be the official Executive Secretary), their rights and Section 722 of the Gramm-Leach- custodian of the record for the Federal obligations will not be substantially Bliley Act 5 requires the Federal banking Deposit Insurance Corporation. affected. As such, submission to agencies to use ‘‘plain language’’ in all * * * * * Congress and the Comptroller General is proposed and final rules published after Assistant Administrative Officer not required for the rules to become January 1, 2000. In light of this means an inferior officer of the Federal effective. requirement, the FDIC has sought to Deposit Insurance Corporation, duly present the final rule in a simple and B. Paperwork Reduction Act appointed by the Board of Directors of straightforward manner. the Federal Deposit Insurance This rule does not propose new or Corporation to serve as the Board’s revisions to existing ‘‘collection[s] of List of Subjects in 12 CFR Part 308 designee to hear certain motions or information’’ as that term is defined Administrative practice and requests in an adjudicatory proceeding under the Paperwork Reduction Act of procedure, Bank deposit insurance, upon the designation or unavailability 1995, Public Law 104–13, 44 U.S.C. Banks, banking, Claims, Crime, Equal of the Administrative Officer. chapter 35, and its implementing access to justice, Fraud, Investigations, regulations, 5 CFR part 1320. Lawyers, Penalties, Savings * * * * * associations. Decisional employee means any C. Regulatory Flexibility Act member of the Federal Deposit The Regulatory Flexibility Act (RFA) 12 CFR Chapter III Insurance Corporation’s or (5 U.S.C. 601–612) does not apply to a Authority and Issuance administrative law judge’s staff who has not engaged in an investigative or rulemaking where a general notice of For the reasons stated in the proposed rulemaking is not required. (5 prosecutorial role in a proceeding and preamble, the FDIC amends 12 CFR part who may assist the Board of Directors, U.S.C. 603 and 604). As noted 308 as follows: previously, the FDIC has determined the administrative law judge, or the that it is unnecessary to publish a notice PART 308—RULES OF PRACTICE AND Administrative Officer, or the Assistant of proposed rulemaking for the final PROCEDURE Administrative Officer, in preparing rule amending part 308. Accordingly, orders, recommended decisions, the RFA’s requirements relating to an ■ 1. The authority citation for part 308 decisions, and other documents under initial and final regulatory flexibility continues to read as follows: the Uniform Rules. analysis do not apply to this rulemaking Authority: 5 U.S.C. 504, 554–557; 12 * * * * * for part 308. U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, Person means an individual, sole proprietor, partnership, corporation, D. Riegle Community Development and 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831o, unincorporated association, trust, joint Regulatory Improvement Act of 1994 1831p–1, 1832(c), 1884(b), 1972, 3102, venture, pool, syndicate, agency, or Pursuant to section 302(a) of the 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), other entity or organization, including Riegle Community Development and 5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), an institution as defined in this section. 78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, Regulatory Improvement Act * * * * * (RCDRIA),3 78u–3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. in determining the effective ■ 3. Amend § 308.18 by revising date and administrative compliance 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104–134, sec. 31001(s), 110 paragraph (a)(1)(ii) to read as follows: requirements for new regulations that Stat. 1321; Pub. L. 109–351, 120 Stat. 1966; impose additional reporting, disclosure, Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114– § 308.18 Commencement of proceeding or other requirements on insured 74, sec. 701, 129 Stat. 584. and contents of notice. depository institutions (IDIs), each ■ 2. Amend § 308.3 by: (a) * * * Federal banking agency must consider, ■ a. Removing the first-level paragraph (1) * * * (ii) The notice must be served by consistent with the principle of safety designations from paragraphs (a) Enforcement Counsel upon the and soundness and the public interest, through (s); respondent and given to any other any administrative burdens that the ■ b. Adding definitions of appropriate financial institution regulations would place on depository ‘‘Administrative Officer’’ and ‘‘Assistant supervisory authority where required by institutions, including small depository Administrative Officer’’ in alphabetical law. institutions and customers of depository order; institutions, as well as the benefits of ■ c. Revising the definition of * * * * * the regulations. In addition, section ‘‘Decisional employee’’; ■ 4. Amend § 308.23 by revising 302(b) of RCDRIA requires new ■ d. Removing the definition of paragraphs (c) and (d) to read as follows: regulations and amendments to ‘‘Executive Secretary’’; and regulations that impose additional ■ e. Revising the definition of ‘‘Person’’. § 308.23 Motions. reporting, disclosures, or other new The additions and revisions read as * * * * * requirements on IDIs generally to take follows: (c) Filing of motions. Motions must be effect on the first day of a calendar filed with the administrative law judge, 4 12 U.S.C. 4802. except that following the filing of the 3 12 U.S.C. 4802(a). 5 12 U.S.C. 4809. recommended decision, motions must

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be filed with the Administrative Officer briefs, memoranda, and other Board of Directors or on the written for disposition by the Board of supporting papers filed in connection request of any party filed with the Directors. with the hearing. The administrative Administrative Officer within the time (d) Responses. (1) Except as otherwise law judge shall serve upon each party for filing exceptions, the Board of provided in this paragraph (d), within the recommended decision, findings, Directors may order and hear oral ten days after service of any written conclusions, and proposed order. argument on the recommended findings, motion, or within such other period of (b) Filing of index. At the same time conclusions, decision, and order of the time as may be established by the the administrative law judge files with administrative law judge. A written administrative law judge or the and certifies to the Administrative request by a party must show good Administrative Officer, any party may Officer for final determination the cause for oral argument and state file a written response to a motion. The record of the proceeding, the reasons why arguments cannot be administrative law judge shall not rule administrative law judge shall furnish to presented adequately in writing. A on any oral or written motion before the Administrative Officer a certified denial of a request for oral argument each party has had an opportunity to index of the entire record of the may be set forth in the Board of file a response. proceeding. The certified index shall Directors’ final decision. Oral argument (2) The failure of a party to oppose a include, at a minimum, an entry for before the Board of Directors must be on written motion or an oral motion made each paper, document or motion filed the record. on the record is deemed a consent by with the administrative law judge in the * * * * * proceeding, the date of the filing, and that party to the entry of an order ■ 9. Amend § 308.102 by revising the substantially in the form of the order the identity of the filer. The certified index shall also include an exhibit section heading and paragraphs (a), (b) accompanying the motion. heading, (b)(1), and (b)(2) introductory * * * * * index containing, at a minimum, an entry consisting of exhibit number and text to read as follows: ■ 5. Amend § 308.33 by revising title or description for: Each exhibit paragraph (a) to read as follows: § 308.102 Authority of Board of Directors introduced and admitted into evidence and Administrative Officer. § 308.33 Public hearings. at the hearing; each exhibit introduced (a) The Board of Directors. (1) The but not admitted into evidence at the (a) General rule. All hearings shall be Board of Directors may, at any time hearing; each exhibit introduced and open to the public, unless the FDIC, in during the pendency of a proceeding, admitted into evidence after the its discretion, determines that holding perform, direct the performance of, or completion of the hearing; and each an open hearing would be contrary to waive performance of, any act which exhibit introduced but not admitted into the public interest. Within 20 days of could be done or ordered by the evidence after the completion of the service of the notice or, in the case of Administrative Officer. hearing. change-in-control proceedings under (2) Nothing contained in this part ■ section 7(j)(4) of the FDIA (12 U.S.C. 7. Amend § 308.39 by revising shall be construed to limit the power of 1817(j)(4)), within 20 days from service paragraph (a) to read as follows: the Board of Directors granted by of the hearing order, any respondent § 308.39 Exceptions to recommended applicable statutes or regulations. may file with the Administrative Officer decision. (b) The Administrative Officer. (1) a request for a private hearing, and any (a) Filing exceptions. Within 30 days When no administrative law judge has party may file a reply to such a request. after service of the recommended jurisdiction over a proceeding, the A party must serve on the decision, findings, conclusions, and Administrative Officer may act in place administrative law judge a copy of any proposed order under § 308.38, a party of, and with the same authority as, an request or reply the party files with the may file with the Administrative Officer administrative law judge, except that Administrative Officer. The form of, and written exceptions to the administrative the Administrative Officer may not hear procedure for, these requests and replies law judge’s recommended decision, a case on the merits or make a are governed by § 308.23. A party’s findings, conclusions, or proposed recommended decision on the merits to failure to file a request or a reply order, to the admission or exclusion of the Board of Directors. constitutes a waiver of any objections evidence, or to the failure of the (2) Pursuant to authority delegated by regarding whether the hearing will be administrative law judge to make a the Board of Directors, the public or private. ruling proposed by a party. A Administrative Officer and Assistant * * * * * supporting brief may be filed at the time Administrative Officer, upon the advice ■ 6. Revise § 308.38 to read as follows: the exceptions are filed, either as part of and recommendation of the Deputy the same document or in a separate General Counsel for Litigation or, in his § 308.38 Recommended decision and filing document. absence, the Assistant General Counsel of record. * * * * * for General Litigation, may issue rulings in proceedings under sections 7(j), 8, (a) Filing of recommended decision ■ 8. Amend § 308.40 by revising 18(j), 19, 32 and 38 of the FDIA (12 and record. Within 45 days after paragraphs (a) and (b) to read as follows: expiration of the time allowed for filing U.S.C. 1817(j), 1818, 1828(j), 1829, reply briefs under § 308.37(b), the § 308.40 Review by Board of Directors. 1831i and 1831o) concerning: administrative law judge shall file with (a) Notice of submission to Board of * * * * * and certify to the Administrative Directors. When the Administrative ■ 10. Amend § 308.103 by revising Officer, for decision, the record of the Officer determines that the record in the paragraph (b)(1) to read as follows: proceeding. The record must include proceeding is complete, the the administrative law judge’s Administrative Officer shall serve notice § 308.103 Appointment of administrative recommended decision, recommended upon the parties that the proceeding has law judge. findings of fact, recommended been submitted to the Board of Directors * * * * * conclusions of law, and proposed order; for final decision. (b) * * * all prehearing and hearing transcripts, (b) Oral argument before the Board of (1) The Enforcement Counsel shall exhibits, and rulings; and the motions, Directors. Upon the initiative of the promptly after issuance of the notice file

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the matter with the Office of Financial FDIC, for that reason alone may be sought and the reason therefor, and Institution Adjudication (‘‘OFIA’’) disqualified from practicing before the shall include a statement indicating which shall secure the appointment of FDIC until such time as the appropriate why the exemption would be consistent an administrative law judge to hear the filing shall be made. Failure to file any with the public interest or the proceeding. such paper shall not impair the protection of investors. * * * * * operation of any other provision of this ■ 16. Amend § 308.140 by revising ■ 11. Revise § 308.104 to read as section. paragraph (a) to read as follows: follows: (3) A suspension or disbarment under paragraph (b)(1) of this section from § 308.140 Newspaper notice. § 308.104 Filings with the Board of practice before the FDIC shall continue (a) General rule. If the Board of Directors. until the applicant has been reinstated (a) General rule. All materials Directors or its designee, in its sole by the Board of Directors for good cause discretion, decides to further consider required to be filed with or referred to shown, provided that any person the Board of Directors in any an application for exemption, there suspended or disbarred under paragraph shall be served upon the applicant proceedings under this part shall be (b)(1) of this section shall be filed with the Administrative Officer, instructions to publish one notification automatically reinstated by the in a newspaper of general circulation in Federal Deposit Insurance Corporation, Administrative Officer, upon 550 17th Street NW, Washington, DC the community where the main office of appropriate application, if all the the issuer is located. The applicant shall 20429. grounds for suspension or disbarment (b) Scope. Filings to be made with the furnish proof of such publication to the under paragraph (b)(1) of this section Administrative Officer or such other Administrative Officer include are subsequently removed by a reversal pleadings and motions filed during the person as may be directed in the of the conviction (or the passage of time instructions. proceeding; the record filed by the since the conviction) or termination of administrative law judge after the the underlying suspension or * * * * * issuance of a recommended decision; disbarment. An application for ■ 17. Revise § 308.141 to read as the recommended decision filed by the reinstatement on any other grounds by follows: administrative law judge following a any person suspended or disbarred motion for summary disposition; under paragraph (b)(1) of this section § 308.141 Notice of hearing. referrals by the administrative law judge may be filed no sooner than one year Within ten days after expiration of the of motions for interlocutory review; after the suspension or disbarment, and period for receipt of comments pursuant motions and responses to motions filed thereafter, a new request for to § 308.140, the Administrative Officer by the parties after the record has been reinstatement may be made no sooner shall serve upon the applicant and any certified to the Board of Directors; than one year after the counsel’s most person who has requested an exceptions and requests for oral recent reinstatement application. The opportunity to be heard written argument; and any other papers application must comply with the notification indicating the place and required to be filed with the Board of requirements of § 303.3 of this chapter. time of the hearing. The hearing shall be Directors under this part. An applicant for reinstatement under held not later than 30 days after service ■ 12. Revise § 308.105 to read as this provision may, in the Board of of the notification of hearing. The follows: Directors’ sole discretion, be afforded a notification shall contain the name and § 308.105 Custodian of the record. hearing. address of the presiding officer designated by the Administrative The Administrative Officer is the * * * * * Officer and a statement of the matters to official custodian of the record when no ■ 14. Amend § 308.112 by revising be considered. administrative law judge has paragraph (a)(2)(ii) to read as follows: ■ 18. Amend § 308.154 by revising jurisdiction over the proceeding. As the § 308.112 Notice of disapproval. official custodian, the Administrative paragraph (c)(1) to read as follows: Officer shall maintain the official record (a) * * * § 308.154 Decision on review. of all papers filed in each proceeding. (2) * * * (ii) Indicate that a hearing may be ■ 13. Amend § 308.109 by revising * * * * * requested by filing a written request paragraphs (b)(2) and (3) to read as (c) * * * with the Administrative Officer within follows: (1) Inform the petitioner that a written ten days after service of the notice of request for a hearing, stating the relief disapproval; and if a hearing is § 308.109 Suspension and disbarment. desired and the grounds therefore, may requested, that an answer to the notice * * * * * be filed with the Administrative Officer of disapproval, as required by § 308.113, (b) * * * within 15 days after the receipt of the must be filed within 20 days after (2) Any person appearing or denial; and practicing before the FDIC who is the service of the notice of disapproval. * * * * * subject of an order, judgment, decree, or * * * * * finding of the types set forth in ■ 15. Revise § 308.139 to read as ■ 19. Amend § 308.155 by revising paragraph (b)(1) of this section shall follows: paragraphs (a), (c)(1) and (9), and (f) to promptly file with the Administrative read as follows: Officer a copy thereof, together with any § 308.139 Application for exemption. related opinion or statement of the Any interested person may file a § 308.155 Hearing. agency or tribunal involved. Any person written application for an exemption (a) Hearing dates. The Administrative who fails to so file a copy of the order, under this subpart with the Officer shall order a hearing to be judgment, decree, or finding within 30 Administrative Officer, Federal Deposit commenced within 30 days after receipt days after the entry of the order, Insurance Corporation, 550 17th Street of a request for a hearing filed pursuant judgment, decree, or finding or the date NW, Washington, DC 20429. The to § 308.154. Upon request of the such person initiates practice before the application shall specify the exemption petitioner or the FDIC, the presiding

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officer or the Administrative Officer designated place, before a presiding (9) The presiding officer shall forward may order a later hearing date. officer designated by the Administrative his or her recommendation to the * * * * * Officer. * * * Administrative Officer who shall (c) * * * (9) The presiding officer shall forward promptly certify the entire record, (1) The hearing shall be held in his or her recommendation to the including the recommendation to the Washington, DC or at another Administrative Officer who shall Board of Directors. The Administrative designated place, before a presiding promptly certify the entire record, Officer’s certification shall close the officer designated by the Administrative including the recommendation to the record. Officer. * * * Board of Directors or its designee. The * * * * * (9) The presiding officer shall forward Administrative Officer certification (e) Decision by Board of Directors or his or her recommendation to the shall close the record. its designee. Within 60 days following Administrative Officer who shall * * * * * the Administrative Officer’s certification promptly certify the entire record, (f) Decision by Board of Directors or of the record to the Board of Directors including the recommendation to the its designee. Within 60 days following or its designee, the Board of Directors or Board of Directors or its designee. The the Administrative Officer’s certification its designee shall notify the institution- Administrative Officer’s certification of the record to the Board of Directors affiliated party whether the notice of shall close the record. or its designee, the Board of Directors or suspension or prohibition or the order * * * * * its designee shall notify the affected of removal or prohibition will be (f) Decision by Board of Directors or person whether the person shall remain continued, terminated, or otherwise its designee. Within 45 days following barred under section 19. The modified. The notification shall state the Administrative Officer’s certification notification shall state the basis for any the basis for any decision of the Board of the record to the Board of Directors decision of the Board of Directors or its of Directors or its designee that is or its designee, the Board of Directors or designee that is adverse to the applicant. adverse to the institution-affiliated its designee shall notify the affected ■ 22. Amend § 308.163 by revising party. The Board of Directors or its individual whether the denial of the paragraphs (c)(1) and (d) introductory designee shall promptly rescind or notice will be continued, terminated, or text to read as follows: modify a notice of suspension or otherwise modified. The notification § 308.163 Notice of suspension or prohibition or an order of removal or shall state the basis for any decision of prohibition where the decision is the Board of Directors or its designee prohibition, and orders of removal or prohibition. favorable to the institution-affiliated that is adverse to the petitioner. The * * * * * party. Board of Directors or its designee shall ■ promptly rescind or modify the denial (c) * * * 24. Amend § 308.170 by revising (1) Inform the institution-affiliated where the decision is favorable to the paragraphs (a) introductory text and (d) party that a written request for a petitioner. to read as follows: hearing, stating the relief desired and ■ 20. Revise § 308.157 to read as grounds therefore, and any supporting § 308.170 Filing, content, and service of follows: evidence, may be filed with the documents. § 308.157 Denial of applications. Administrative Officer within 30 days (a) Time to file. An application and any other pleading or document related If an application is denied under 12 after service of the written notice or to the application shall be filed with the CFR part 303, subpart L, then the order; and Administrative Officer within 30 days applicant may request a hearing under * * * * * after service of the final order of the this subpart. The applicant will have 60 (d) To obtain a hearing, the Board of Directors in disposition of the days after the date of the denial to file institution-affiliated party shall file with proceeding whenever: a written request with the the Administrative Officer a written Administrative Officer. In the request, request for a hearing within 30 days * * * * * the applicant shall state the relief after service of the notice of suspension (d) Referral. Upon receipt of an desired, the grounds supporting the or prohibition or the order of removal or application, the Administrative Officer request for relief, and provide any prohibition, which shall: shall refer the matter to the supporting evidence that the applicant * * * * * administrative law judge who heard the believes is responsive to the grounds for ■ 23. Amend § 308.164 by revising underlying adversary proceeding, the denial. paragraphs (a), (b)(1) and (9), and (e) to provided that if the original ■ 21. Amend § 308.158 by revising read as follows: administrative law judge is unavailable, paragraphs (a), (c)(1) and (9), and (f) to or the Administrative Officer read as follows: § 308.164 Hearings. determines, in his or her sole discretion, (a) Hearing dates. The Administrative that there is cause to refer the matter to § 308.158 Hearings. Officer shall order a hearing to be a different administrative law judge, the (a) Hearing dates. The Administrative commenced within 30 days after receipt matter shall be referred to a different Officer shall order a hearing to be of a request for hearing filed pursuant to administrative law judge. commenced within 60 days after receipt § 308.163. Upon the request of the ■ 25. Amend § 308.171 by revising of a request for hearing on an institution-affiliated party, the presiding paragraph (a)(1) to read as follows: application filed under § 308.157. Upon officer or the Administrative Officer the request of the applicant or FDIC may order a later hearing date. § 308.171 Responses to application. enforcement counsel, the presiding * * * * * (a) * * * officer or the Administrative Officer (b) * * * (1) Within 20 days after service of an may order a later hearing date. (1) The hearing shall be held in application, counsel for the FDIC may * * * * * Washington, DC, or at another file with the Administrative Officer and (c) * * * designated place, before a presiding serve on all parties an answer to the (1) The hearing shall be held in officer designated by the Administrative application. Unless counsel for the FDIC Washington, DC, or at another Officer. * * * requests and is granted an extension of

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time for filing or files a statement of file with the Administrative Officer for the FDIC in a case may not, in that intent to negotiate under § 308.179, written exceptions thereto. A supporting or a factually related case, serve as a failure to file an answer within the 20- brief may also be filed. presiding officer or participate or advise day period will be treated as a consent (b) Decision of Board of Directors. The in the decision of the presiding officer to the award requested. Board of Directors shall render its or of the FDIC, except as witness or * * * * * decision within 60 days after the matter counsel in the proceeding. In the sole ■ 26. Revise § 308.179 to read as is submitted to it by the Administrative discretion of the presiding officer, upon follows: Officer. The Administrative Officer shall a specific showing of compelling need, furnish copies of the decision and order oral testimony of witnesses also may be § 308.179 Settlement negotiations. of the Board of Directors to the parties. presented. Enforcement counsel may If counsel for the FDIC and the Judicial review of the decision and represent the agency at the hearing. In applicant believe that the issues in a fee order may be obtained as provided in 5 hearings held pursuant to this paragraph application can be settled, they may U.S.C. 504(c)(2). (c)(4) there shall be no discovery, and jointly file with the Administrative ■ 29. Revise § 308.183 to read as the provisions of §§ 308.6 through Officer with a copy to the administrative follows: 308.12, 308.16, and 308.21 will apply. law judge a statement of their intent to (5) Decision on petition. Within 30 negotiate a settlement. The filing of this § 308.183 Payment of awards. calendar days after the hearing, the statement shall extend the time for filing An applicant seeking payment of an presiding officer will issue a decision. an answer under § 308.171 for an award made by the Board of Directors The presiding officer will grant a stay additional 30 days, and further shall submit to the Administrative upon a demonstration that a substantial extensions may be granted by the Officer a statement that the applicant likelihood exists of the respondent’s administrative law judge upon the joint will not seek judicial review of the success on the issues raised by the request of counsel for the FDIC and the decision and order or that the time for notice of intention and that, absent such applicant. seeking further review has passed and relief, the respondent will suffer ■ 27. Revise § 308.181 to read as no further review has been sought. The immediate and irreparable injury, loss, follows: FDIC will pay the amount awarded or damage. In the absence of such a within 30 days after receiving the demonstration, the presiding officer will § 308.181 Recommended decision. applicant’s statement, unless judicial notify the parties that the immediate The administrative law judge shall review of the award or of the underlying suspension will be continued pending file with the Administrative Officer a decision of the adversary adjudication the completion of the administrative recommended decision on the fee has been sought by the applicant or any proceedings pursuant to the notice of application not later than 90 days after other party to the proceeding. intention. The presiding officer will the filing of the application or 30 days ■ 30. Amend § 308.602 by revising serve a copy of the decision on, and after the conclusion of the hearing, paragraphs (c)(3) through (6) to read as simultaneously certify the record to, the whichever is later. The recommended follows: Administrative Officer. decision shall include written proposed (6) Review of presiding officer’s findings and conclusions on the § 308.602 Removal, suspension, or decision. The parties may seek review of debarment. applicant’s eligibility and its status as a the presiding officer’s decision by filing prevailing party and an explanation of * * * * * a petition for review with the the reasons for any difference between (c) * * * Administrative Officer within 10 the amount requested and the amount of (3) Petition to stay. Any accountant or calendar days after service of the the recommended award. The accounting firm immediately suspended decision. Replies must be filed within recommended decision shall also from performing audit services in 10 calendar days after the petition filing include, if at issue, proposed findings accordance with paragraph (c)(1) of this date. Upon receipt of a petition for on whether the FDIC’s position was section may, within 10 calendar days review and any reply, the substantially justified, whether the after service of the notice of immediate Administrative Officer will promptly applicant unduly protracted the suspension, file a petition with the certify the entire record to the Board of proceedings, or whether special Administrative Officer for a stay of such Directors. Within 60 calendar days of circumstances make an award unjust. immediate suspension. If no petition is the Administrative Officer’s The administrative law judge shall file filed within 10 calendar days, the certification, the Board of Directors will the record of the proceeding on the fee immediate suspension shall remain in issue an order notifying the affected application and, at the same time, serve effect. party whether or not the immediate upon each party a copy of the (4) Hearing on petition. Upon receipt suspension should be continued or recommended decision, findings, of a stay petition, the Administrative reinstated. The order will state the basis conclusions, and proposed order. Officer will designate a presiding officer of the Board’s decision. ■ 28. Revise § 308.182 to read as who will fix a place and time (not more Federal Deposit Insurance Corporation. than 10 calendar days after receipt of follows: By order of the Board of Directors. the petition, unless extended at the § 308.182 Board of Directors action. request of petitioner) at which the Dated at Washington, DC, on December 15, (a) Exceptions to recommended immediately suspended party may 2020. decision. Within 20 days after service of appear, personally or through counsel, James P. Sheesley, the recommended decision, findings, to submit written materials and oral Assistant Executive Secretary. conclusions, and proposed order, the argument. Any FDIC employee engaged [FR Doc. 2020–27944 Filed 1–11–21; 8:45 am] applicant or counsel for the FDIC may in investigative or prosecuting functions BILLING CODE 6714–01–P

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